*1
Argued Dec. 1993. Aug. Decided *4 Smarro, for Melvin Howard. Janis Marshall, Burns, for Com. Hugh J. Catherine Graci, Atty. A. for Gen. Robert FLAHERTY, ZAPPALA, NIX, C.J., and Before MONTEMURO, PAPADAKOS, and JJ. CAPPY THE COURT OPINION OF CAPPY, Justice. Howard, convicted of first de- Melvin Appellant,
The instrument of crime2 and of an gree possession murder1 of Clarence stabbing with the death Woodlock connection appeal an automatic direct to death.3 This is was sentenced reasons we discuss below we from that sentence.4 For the imposed by the Court judgment affirm the sentence County, Criminal Division. Philadelphia Pleas of Common judgment of sen In all cases where we affirm death, independent conduct an review this Court must tence of charge of murder of of the evidence on the sufficiency had regard without to whether degree the first on that ground. his conviction challenged 937, 942 n. 3 n. Zettlemoyer, 26-27 2502(a). § 1. 18 Pa.C.S. § Pa.C.S. 907.
2. 18 penalty imposed for the guilt further 3: A sentence of without § 18 Pa.C.S. violation of 702(b). 722(4), 9711(h)(1); §§ Pa.R.A.P. 4. 42 Pa.C.S.
91
denied,
2444,
970,
L.Ed.2d
(1982),
461
103 S.Ct.
77
cert.
U.S.
denied,
(1983),
463
104 S.Ct.
77
reh’g
U.S.
(1983).
determining sufficiency
The test for
L.Ed.2d 1452
evidence,
deducible
and all reasonable inferences
whether the
therefrom,
light
favorable to the Common
viewed
the
most
verdict-winner,
all the
are sufficient to establish
wealth as
beyond a reasonable doubt. Commonwealth
elements
(1986).
Rhodes,
537,
The facts of the incident in the death of Clarence Shortly at trial are as follows. after Woodlock as established 27, 1987, was involved in an midnight September Appellant on men, decedent, two one of at altercation with whom was 52nd and in Philadelphia. the intersection of Market Streets help, called out for and four men came to the scene Appellant away. Shortly and chased the decedent and the other man thereafter, wood, piece returned with a which decedent he out a swung Appellant. Appellant pulled at then knife. The decedent and the other man took off different di- men, Appellant, along rections. with three or four other decedent, Appel- who of wood at pursued piece threw Appellant lant but missed. continued to chase the decedent fell, get up Appellant until the decedent and as he started to him him punched ground. Appellant and knocked to the began repeatedly, point using to stab the decedent at one both plunge hands to the knife into decedent’s chest. scene, lived,
then left fled to his mother Georgia where and arrested there. The knife was not recov- eventually ered. was tried before a The Commonwealth’s jury. eyewitness
witnesses included an who testified as Additionally, investigating arresting events. and officers testified, city as did the assistant medical examiner for the county Philadelphia body who testified that the decedent’s by 16 wounds consistent with those caused a knife. contained testify, only presented did not and the witness testified that the defense was trial counsel’s assistant who right-handed. verdicts, and guilty penalty The returned the at aggravating circum- there was one phase determined Thus, circumstances. the sentence mitigating stance and no *6 of death was returned. counsel, asserts various issues Appellant
Through appellate assistance of counsel before this of trial and ineffective error to verdicts of These issues were respect guilt. court with motions, all meritless. and were found to be post-trial raised in I. of the Trial Court Error
First, erred in argues that the trial court Appellant introduce of a the Commonwealth to evidence permitting incorporat arrest which by Appellant at time of statement arresting The officer testified ed “other crimes” evidence. asked Georgia, Appellant that was arrested Appellant when murder,” he for. “For he being what was arrested police replied, Appellant one?” Appellant was told. then “Which Appel inference that alleges this statement creates the that murder he referring more than one that had lant was to crimes, committed, that this was therefore evidence prior is absent a typically and that such evidence inadmissible specific exception. Appellant’s is contention
Appellant’s argument
erroneous.
to
murders
by
that
evidence referred
other
committed
this
way
jury
interpret
that the
would so
it that
Appellant and
fact,
only
it was
implication.
not a reasonable
defense
argument,
conclusion in his closing
counsel that drew this
joke
may
a
out of the idea that
Appellant
when he made
to inquire
so
murders that he had
which
many
have committed
The
in which
among
being
he was
arrested for.
context
them
was elicited would not create the inference that
testimony
this
was an at-
Appellant suggests.
response
The
“Wfiiichone?”
murder he
tempt
Appellant
to determine with whose
by
attempt-
was
charged.
clearly
The Commonwealth
being
knowledge
murder
Appellant
had
of the
ing
establish
9711(d)(9) (the
significant history
§
a
5. 42
defendant has
Pa.C.S.
involving
prior felony
the use or threat of violence
convictions
person.)
statement, and that
when he made this
of Clarence Woodlock
knowledge.
such
There-
would not have
person
an innocent
here.
fore,
prior
no
crimes evidence
simply
there is
when
also contends that the trial court erred
Appellant
not offer evidence that he was
it
could
ruled
for the
by signing
name
right-handed
specifically,
—
subject
to cross-examination.
being
see—without
name-writing
him
ruling
this
forced
to decline his
argues that
testimony
instead offer the
of counsel’s
demonstration and
that such demonstration
Appellant fervently argues
assistant.
subject
Regardless
to cross-examination.
should not be
contention,
could
we fail to see how
merit of that
ruling.
the court’s
Whether
have been harmed
since
was of dubious relevance
right-
or left-handed
testified,
examiner who
handedness
according to the medical
*7
determined
knife wounds. More
definitively
could not be
over,
Appellant
indicated that
testimony
eyewitness
of the
used both hands while
stabbing
Finally, Appellant
decedent.
handedness;
as
his
in fact able to enter evidence
would have
that much
see how his demonstration
been
cannot
his
testimony
being
than the assistant’s
so that
probative
more
error
it would rise to the level of
presenting
from
precluded
Story,
v.
a new trial. See Commonwealth
476 Pa.
requiring
(1978) (error
391,
is
if evidence is so
94
argues
first
trial counsel
objecting
Appellant’s
for not
to the introduction of
ineffective
However, we note that trial counsel
“Which one?”
statement
ruling
the trial court to exclude
an in limine
from
did seek
Moreover,
statements;
as
that motion was denied.
these
above,
no basis to have these state
discussed
had
held
ineffective
Trial counsel cannot be
to be
ments excluded.
raise a
claim.
failing to
futile actions or to
meritless
for
take
Rashed,
(1981);
436
v.
496 Pa.
A.2d 134
Commonwealth
(1981);
Pettus,
v.
Pa.
A.2d
Commonwealth
(1980).
Giknes,
215,
Q: anything did Georgia]? down there [in No,
A. sir. said, one,” say Q. How before he “Which did he about him there? anything long you how had seen down abut know, were, to me you A. The oral statement he made only You you arresting now? seen me before “Why just me now.” argument,
Additionally, during closing prosecutor stated: *8 gets up says, Alva trial here and [Appellant’s counsel]
Mr. Well, what, who, me, says things. the a lot of defendant where, when, I Is you how? didn’t do that. that what the said when the officer arrested heard defendant [sic] Or it real he said? one? him? what clear what Which here, you, I a murder warrant. Which got You’re have means, gentlemen. You ladies and one. decide what that fail because argument ineffectiveness must Appellant’s Here, no the claim. the underlying prosecu- there is merit to silence. post-arrest defendant’s remarking on the tor is not Ap concerned argument presented Rather, evidence and the v. Jer See Commonwealth statements. post-arrest pellant’s (1987). of the The context Pa. myn, was prosecutor that the not indicate elicited does testimony unrespon defendant’s inference that to create an attempting rather, guilty; he was of the arrest meant at the time siveness estab above, attempting was the Commonwealth as noted the murder of of the knowledge had Appellant that lish not have such would decedent, person an innocent and that knowledge. of coun- assistance of ineffective allegation third
Appellant’s cautionary a request to trial counsel’s failure relates sel During Appellant. of the concerning photograph a instruction Appellant a photograph of eyewitness, the examination rather purposes for identification shown to the witness was name because identify Appellant having than the witness nickname, “Q,” or “Sin Appellant by knew only the witness jury the and was never shown to was Q.” photograph This cross-examination, defense into evidence. On not admitted man, another who a of photograph the witness counsel showed as a photograph and referred to such “QB,” known as strategy imply was to trial counsel’s shot.” “mug Apparently, with this confused may have eyewitness not shown to QBof photograph as The “QB.” man known it admitted into evidence. jury, nor was to the deliberations, request sent a jury During jury This QB. “mug shots” judge to view a requested trial counsel day, denied. The next request was reference jury’s to the cautionary respect instruction with however, shot”; being “mug a picture be instruction could a verdict before the returned with jury given. jury’s conclusion that the argues now a caution demanded “mug was a shot”
Appellant’s photograph prior inferred must have ary instruction because timely failure to and counsel’s by Appellant, conduct criminal *9 96 an was ineffective assistance. such instruction See
request (1986) Brown, Pa. 596 v. 511 mug error where shots were opinion) (may be (plurality however, argument, to This is incorrect. actually given jury). arguable if show that there was some Appellant Even could claim, counsel no reasonable to this and trial had basis merit instruction, cautionary to a failing timely request for The fact prejudice jury show here. wanted cannot may that counsel have created a pictures both indicated see jurors’ may in that another man have minds been question However, for this did not question the murder. responsible doubt, by level evidenced rise to the of reasonable as verdict. that,
Additionally, must show absent alleged counsel, of result in ineffectiveness his case would have Edmiston, been different. Commonwealth Pierce, facts, (1993); supra. Based on these A.2d of jury’s any conclude that the verdict was the result cannot conduct and that the prior inference criminal jury in had the result this case would have been different been not to make such an inference. cautioned argues next trial counsel was ineffec timely request he that the be instruct tive when failed that no inference could be drawn from the defen ed adverse (the charge”).6 to testify failure “no-adverse-inference dant’s trial, the completion judge At the trial instructed the charge, did not the no-adverse-inference and jury, but include adjourned day. adjournment, for the After the trial court not counsel realized that he had asked for the no-adverse- trial Early morning, inference instruction. next counsel *10 that he stated judge The trial instruction. the requested and noon and 12:00 11:30 a.m. between in the courtroom would be ex- judge trial then. The instruction give the and would would jury the did not believe that he opinion the pressed case, the to be prove This did not before then. reach a verdict before verdicts guilty with the however, jury returned and the given.7 could be the instruction underlying claim
First,
in Appellant’s
find merit
violation
rights
denied his constitutional
that he was
that
and
I,
Pennsylvania Constitution8
9 of the
Article
Section
Court,
This
error.
constitute harmless
does not
such violation
(1991),
440,
Lewis,
The Commonwealth dire. during voir charge a clear no-adverse-inference jury Lewis, argument similar when rejected a In this Court dire, voir none during various instructions given could be inference that no adverse stated specifically which This Court testify. failure to defendant’s from the drawn indirect, charg- approach piecemeal an recognize refused Lewis, stated: this Court ing jury. a “no-ad- in this Commonwealth
Having determined guaran- necessary to secure charge verse-inference” *11 9, given either the I, judge the has Article section tees of not suf- will not. Make-shift substitutes charge or he has no in terms that told no uncertain must be fice. Juries failure drawn from a defendant’s may inference be adverse otherwise, guesswork left to mere stand; we are to take the tangentially to have ascribed meaning juries the as to of the court. related words
Lewis,
450,
The record
if
defendant
failed to
dire that
the
during
told
voir
cally
defense,
in
that could
the stand
his
evidence or take
present
him; however,
charge was not
such
against
held
not be
given
was
its
jury
trial when the
at the end of the
repeated
statement of
in Lewis no clear
Although
final instructions.
all,
at
we believe
charge
given
the no-adverse-inference
to this situation—
applies equally
in Lewis
reasoning
that the
charge but
the no-adverse-inference
jury
given
the
is
where
hold that the no-adverse-inference
voir dire —and
only during
found
general
counsel cannot be
Although
as a
rule
we note that
law,
e.g.,
changes
Common
failing
anticipate
in the
see
for
ineffective
Johnson,
407,
(1987),
emphasize that
Second, basis trial was no reasonable there Here, request trial counsel failed to course of conduct. sel’s sent out to had been the instruction until after It “timely.” is patently This not request deliberate. failure to from trial counsel’s quite evident the record that unreasonable. timely in a manner was charge request noted, not the no- Although requesting as the trial court circumstances be a charge may certain adverse-inference see, conduct, e.g., reasonable course of Lewis, (1994); Edwards, Pa. at 637 A.2d 14; is argument 455 n. 983 n. this irrelevant at here, charge, but trial counsel did ask for the facts where true, judge manner. is as the trial also untimely an It must noted, actions be the reasonableness counsel’s record, objective from an standard established viewed However, trial conclusion subjective not a one. court’s objective an stand trial reasonable from counsel was is, for the strategy that it was not ask point counsel’s —that charge, strategy objectively and such no-adverse-inference *12 record on light in detailed reasonable —cannot stand point. this he preju must show that
Finally, Appellant
above,
Court
As noted
this
by
diced
trial counsel’s actions.
a defendant
is
progeny
has held under Pierce and its
that
is,
that counsel’s
actual
that
required
prejudice;
to show
it “could have
magnitude
ineffectiveness was of such
that
the outcome of the
reasonably had an adverse effect on
Pierce,
at
This
at
proceedings.”
Pa.
analysis that
error
is
standard is different from the harmless
the trial court
determining
when
whether
typically applied
erred in
or
to take certain action. The harmless
taking
failing
standard,
by
error
as set forth
this Court
Commonwealth v.
(citations
omitted),
Appellant’s last claim of ineffective assistance of object counsel involves trial counsel’s failure to to a jury instruction on prior inconsistent statements when the instruc-
101
such
jury that
it could consider
tion
not inform the
did
has
that
This Court
held
as substantive evidence.
statements
as substantive
statements
be used
prior
may
inconsistent
if
to
the truth of the matter asserted therein
prove
evidence
an
made under circumstances with
such
statements were
prior
530
Lively,
v.
Pa.
reliability.
indicia of
(1992);
507
Brady,
Finally, pursuant Pa.C.S. determine that: to affirm the sentence of death unless we duty (i) passion, preju- of was the of product the sentence death factor; any arbitrary dice or other (ii) fails of at one support finding the evidence the least (d); or specified subsection aggravating circumstance (iii) or disproportionate of death is excessive sentence cases, considering in similar both penalty imposed and record of of the crime and the character circumstances the defendant. case, find
After review of this
sentence
any
or
imposed
product
passion, prejudice,
not
sup
evidence
factor.
also find that the
arbitrary
other
We
jury’s finding
aggravating
speci
circumstance
ports 9711(d)(9).
at
§
record
fied in
The
establishes
Pa.C.S.
*14
convicted in New
the time of the trial herein
a knife in 1977
Jersey
battery
of atrocious assault and
with
1978;
in
battery
gun
and atrocious assault and
with a
and was
in
of
in 1980.
Pennsylvania
robbery
convicted
addition,
reviewing
compiled by
after
the information
our
in
requirements
Administrative Office
accordance with the
set
428,
700,
Frey,
in
forth
denied,
968,
360,
Accordingly, Judgment Sentence Howard, the Court imposed upon Appellant, Melvin of Philadelphia County.11 Common Pleas of Judgment of Sentence affirmed.
LARSEN, J., in did not the consideration or participate decision of this case.
ZAPPALA, J., dissenting opinion. files a Justice, MONTEMURO, appointed Senior was an Justice of argument.* the Court at the time of ZAPPALA, Justice, dissenting. majority
I dissent.
I cannot conclude as the
has that
in
Appellant’s
light
majority’s
counsel was effective
of the
proper analysis
that
was denied his constitutional
in
rights
Pennsylvania
violation of Article
9 of the
Section
I agree
majoritys
analysis
Constitution.
with the
trial
request
counsel acted
when he failed to
a “no-
improperly
jury
adverse inference”
instruction
and that no reasonable
My
existed for trial counsel’s course of conduct.
dis-
basis
Prothonotary
Supreme
11. The
Court is directed to transmit the
complete
judice
Pennsylvania.
record of the case sub
to the Governor of
l(i).
§
42 Pa.C.S.
* MONTEMURO,J.,
sitting by designation
pursuant
as Senior Justice
R1801,
Assignment
unavailability
Judicial
LARSEN,
Docket No. 94
due to the
i,
see No. 127 Judicial Administration Docket No.
filed
October
arises from their conclusion
agreement
majority
with the
independent
and their
prejudice
to establish
Appellant failed
any prejudice.
to discern
record likewise failed
review of the
majority in this
Appellant by
on the
placed
The burden
highlights
and absurd and
impossible
is both
instance
Pierce standard.1
element
prejudice
unfairness of the
prejudice
could
establish
possibly
only way
The
depose
each member
re-empanel
here would be to
witness stand
failure to take the
Appellant’s
as to the effect
If
failure
Appellant’s
on
verdict.
his defense had
his/her
juror’s mind, then
only
one
a critical factor
testify was
Pierce,
established the re-
would have
under
proceedings”
on the outcome of the
quired “adverse effect
*15
“prejudice.”
testimony,
Short of that
necessary
prove
claim.
cannot
his ineffectiveness
sustain
scenario,
could never
As can be seen
this
such, I
adhere to
required prejudice.
As
would
establish
Commonwealth v.
my
my
set forth in
dissent
reasoning
Pierce,
support
if
no reasonable basis to
supra,
there is
action,
prejudicial
action a fortiori was
his
trial counsel’s
Pierce,
153,
client. 515 Pa.
Supreme Court 27, 1994. Submitted June Aug. 1994. Decided Pierce, (1987). Commonwealth v. notes stenographer the court check her requested charge Pennsylvania as in the 6. The no-adverse-inference included Suggested Jury Criminal Instructions as follows: (Crim) NOT FAILURE TO TESTIFY EVI- 3.10A DEFENDANT’S DENCE OF GUILT entirely up every defendant trial or It is to the criminal whether right testify. not to He has an absolute founded on Constitution any guilt silent. not draw to remain You must inference from the testify. fact that the defendant did not After deter- given. been had fact charge if the determine judge the trial not, approached trial counsel that it had mining